1. The Constitution adopted by Georgia, A.D. 1868, by which it
was provided that
"No court or officer shall have, nor shall the General Assembly
give, jurisdiction to try, or give judgment on, or enforce any
debt, the consideration of which was a slave or the hire
thereof"
is to be regarded by the court as voluntarily adopted by the
state named, and not as adopted under any dictation and coercion of
Congress. Congress having received and recognized the said
Constitution as the voluntary and valid offering of the State of
Georgia, this Court is concluded by such action of the political
department of the government.
At no time during the rebellion were the rebellious states out
of the pale of the Union. Their constitutional duties and
obligations remained unaffected by the rebellion. They could not
then pass a law impairing the obligation of a contract more than
before the rebellion, or now, since.
Page 80 U. S. 647
3. The ideas of the validity of a contract and of the remedy to
enforce it are inseparable, and both are parts of the obligation
which is guaranteed by the Constitution against invasion.
Accordingly, whenever a state, in modifying any remedies to enforce
a contract, does so in a way to impair substantial rights, the
attempted modification is within the prohibition of the
Constitution, and to that extent void.
4. Held, therefore, that the clause of the Constitution of
Georgia, quoted in the first paragraph above, had no effect on a
contract made previous to it, though the consideration of the
contract was a slave.
5. A note of which the consideration is a slave, slavery being
at the time lawful by the law of the place where the note was
given, is valid.
MR. JUSTICE SWAYNE stated the case, and delivered the opinion of
the Court.
The suit was instituted by the plaintiff in error on the 10th of
January, 1866, in the Superior Court of Chattooga County. He
declared upon a promissory note made to him by the defendants in
error for twelve hundred and thirty dollars, dated February 9,
1859, and payable on the 1st of March, A.D. 1860. The defendant
pleaded in abatement that "the consideration of the note was a
slave," and that
"by the present Constitution of Georgia, made and adopted since
the last pleadings in this case, the court is prohibited to take
and exercise jurisdiction or render judgment therein."
To this plea the plaintiff demurred. The court overruled the
demurrer and gave judgment for the defendants. The plaintiff
excepted and removed the case to the supreme court of the state,
where the judgment was affirmed, and the plaintiff thereupon
prosecuted this writ of error. The
Page 80 U. S. 648
Constitution of Georgia of 1868, which is still in force,
contains [
Footnote 1] the
following clause:
"Provided that no court or officer shall have, nor shall the
General Assembly give, jurisdiction to try or give judgment on or
enforce any debt the consideration of which was a slave or the hire
thereof."
From the close of the rebellion until Georgia was restored to
her normal relations and functions in the Union, she was governed
under the laws of the United States known as the Reconstruction
Acts. Under these laws, her present constitution was framed,
adopted, and submitted to Congress. Among the terms of her
rehabilitation prescribed by the acts referred to, it was made a
fundamental condition that certain designated parts of the
constitution so submitted should "be null and void, and that the
General Assembly of the state" should, "by a solemn act, declare
the assent of the state" to the required modification. [
Footnote 2] The constitution was
modified accordingly. When submitted, it contained the proviso here
under consideration. No objection was made to the proviso, and it
has since remained a part of the instrument. With her constitution
thus modified, Congress enacted
"That the State of Georgia, having complied with the
Reconstruction Acts, and the Fourteenth and Fifteenth Amendments to
the Constitution of the United States having been ratified in good
faith by a legal legislature of said state, it is hereby declared
that the State of Georgia is entitled to representation in the
Congress of the United States. [
Footnote 3]"
Her representatives and senators were thereupon admitted to
seats in Congress. This act removed the last of the disabilities
and penalties which were visited upon her for her share of the
guilt of the rebellion. The condonation by the National government
thus became complete.
The judgment we are called upon to review is ought to be
maintained upon the following grounds:
Page 80 U. S. 649
(1) That when the Constitution of 1868 was adopted, Georgia was
not a state of the Union, that she had sundered her connection as
such, and was a conquered territory wholly at the mercy of the
conqueror, and that hence the inhibition of the states by the
Constitution of the United States to pass any law impairing the
obligation of contracts had no application to her.
(2) That her constitution does not affect the contract, but only
denies jurisdiction to her courts to enforce it.
(3) That her constitution was adopted under the dictation and
coercion of Congress, and is the act of Congress, rather than of
the state, and that though a state cannot pass a law impairing the
validity of contracts, Congress can, and that for this reason also
the inhibition in the Constitution of the United States has no
effect in this case.
The third of these propositions is clearly unsound, and requires
only a few remarks. Congress authorized the state to frame a new
constitution, and she elected to proceed within the scope of the
authority conferred. The result was submitted to Congress as a
voluntary and valid offering, and was so received and so recognized
in the subsequent action of that body. The state is estopped to
assail it upon such an assumption. Upon the same grounds she might
deny the validity of her ratification of the constitutional
amendments. The action of Congress upon the subject cannot be
inquired into. The case is clearly one in which the judicial is
bound to follow the action of the political department of the
government, and is concluded by it. [
Footnote 4] We may add that if Congress had expressly
dictated and expressly approved the proviso in question, such
dictation and approval would be without effect. Congress has no
power to supersede the National Constitution.
The subject presented by the first proposition has been
considered under some of its aspects several times by this
Page 80 U. S. 650
Court. We need do little more upon this occasion than to
reaffirm the views heretofore expressed and add such further
remarks as are called for by the exigencies of the case before
us.
The national Constitution was, as its preamble recites, ordained
and established by the people of the United States. It created not
a confederacy of states, but a government of individuals. It
assumed that the government and the Union which it created, and the
states which were incorporated into the Union, would be
indestructible and perpetual, and as far as human means could
accomplish such a work, it intended to make them so. The government
of the nation and the government of the states are each alike
absolute and independent of each other in their respective spheres
of action, but the former is as much a part of the government of
the people of each state, and as much entitled to their allegiance
and obedience as their own local state governments -- "the
Constitution of the United States and the laws made in pursuance
thereof," being in all cases where they apply, the supreme law of
the land. For all the purposes of the national government, the
people of the United States are an integral, and not a composite
mass, and their unity and identity, in this view of the subject,
are not affected by their segregation by state lines for the
purposes of state government and local administration. Considered
in this connection, the states are organisms for the performance of
their appropriate functions in the vital system of the larger
polity, of which, in this aspect of the subject, they form a part,
and which would perish if they were all stricken from existence or
ceased to perform their allotted work. The doctrine of secession is
a doctrine of treason, and practical secession is practical
treason, seeking to give itself triumph by revolutionary violence.
The late rebellion was without any element of right or sanction of
law. The duration and magnitude of the war did not change its
character. In some respects it was not unlike the insurrection of a
county or other municipal subdivision of territory against the
state to which it belongs. In such cases, the state has
inherently
Page 80 U. S. 651
the right to use all the means necessary to put down the
resistance to its authority and restore peace, order and obedience
to law. If need be, it has the right also to call on the government
of the Union for the requisite aid to that end. Whatever
precautionary or penal measures the state may take when the
insurrection is suppressed, the proposition would be a strange one
to maintain that while it lasted, the county was not a part of the
state, and hence was absolved from the duties, liabilities, and
restrictions which would have been incumbent upon it if it had
remained in its normal condition and relations. The power exercised
in putting down the late rebellion is given expressly by the
Constitution to Congress. That body made the laws, and the
President executed them. The granted power carried with it not only
the right to use the requisite means, but it reached further and
carried with it also authority to guard against the renewal of the
conflict and to remedy the evils arising from it insofar as that
could be effected by appropriate legislation. [
Footnote 5] At no time were the rebellious states
out of the pale of the Union. Their rights under the Constitution
were suspended, but not destroyed. Their constitutional duties and
obligations were unaffected, and remained the same. A citizen is
still a citizen, though guilty of crime and visited with
punishment. His political rights may be put in abeyance or
forfeited. The result depends upon the rule, as defined in the law,
of the sovereign against whom he has offended. If he lose his
rights, he escapes none of his disabilities and liabilities which
before subsisted. Certainly he can have no new rights or immunities
arising from his crime. These analogies of the county and the
citizen are not inapplicable, by way of illustration, to the
condition of the rebel states during their rebellion. The
legislation of Congress shows that these were the views entertained
by that department of the government.
In the several acts admitting new states, the same formula
substantially is used in all cases. It is that the state named
Page 80 U. S. 652
"shall be and is hereby declared to be one of the United States
of America, and is hereby admitted into the Union, upon an equal
footing with the original states, in all respects whatsoever.
[
Footnote 6]"
In the several Reconstruction Acts, the language used in this
connection is that the state in question "shall be declared
entitled to representation in Congress, and senators and
representatives shall be admitted therefrom," [
Footnote 7] "shall be entitled and admitted to
representation in Congress as a state of the Union, when," &c.
[
Footnote 8] And lastly, in the
final act as to Georgia -- "It is hereby declared that the State of
Georgia is entitled to representation in the Congress of the United
States." [
Footnote 9]
The different language employed in the two classes of cases
evinces clearly that in the judgment of Congress, the reconstructed
states had not been out of the Union, and that to bring them back
into full communion with the loyal states, nothing was necessary
but to permit them to restore their representation in Congress.
Without reference to this element of the case, we should have come
to the same conclusion. But the fact is one of great weight in the
consideration of the subject. And we think it is conclusive upon
the judicial department of the government. [
Footnote 10]
Georgia, after her rebellion and before her representation was
restored, has no more power to grant a title of nobility, to pass a
bill of attainder, an
ex post facto law, or law impairing
the obligation of contracts, or to do anything else prohibited to
her by the Constitution of the United States, than she had before
her rebellion began or after her restoration to her normal position
in the Union. It is well settled by the adjudications of this Court
that a state can no more impair the obligation of a contract by
adopting a constitution than by passing a law. In the eye of the
constitutional inhibition, they are substantially the same
thing.
Page 80 U. S. 653
The second proposition remains to be considered. When the note
was executed and until the Constitution of 1868 was adopted, the
courts of the state had unquestionable jurisdiction to entertain a
suit brought to enforce its collection, and if that jurisdiction
ceased it was by reason of the provision of the Constitution of the
state, here under consideration.
The question presented by this proposition was fully considered
by this Court in
Van Hoffman v. City of Quincy. [
Footnote 11] The city had sold its
bonds under acts of the legislature of Illinois, which authorized
their issue and required the assessment and collection of a special
tax to meet the interest; and it was declared that the amount so
raised should be applied to that object "and to no other purpose
whatsoever." The legislature subsequently passed an act which
prohibited any tax beyond the amount therein specified to be
imposed. This tax yielded a sum barely sufficient to meet the
municipal wants of the city -- leaving nothing to be applied to the
interest upon the bonds. This Court held the prohibition, so far as
it affected the special tax, to be void, and by a writ of mandamus
ordered that tax to be collected and applied, as if the subsequent
act had not been passed. It was said,
"the laws which subsist at the time and place of the making of a
contract, and where it is to be performed, enter into and form a
part of it as if they were expressly referred to or incorporated in
its terms. . . . Nothing can be more material to the obligation
than the means of enforcement."
Without the remedy, the contract may indeed, in the sense of the
law, be said not to exist and its obligation to fall within the
class of those moral and social duties which depend for their
fulfillment wholly upon the will of the individual. The ideas of
validity and remedy are inseparable, and both are parts of the
obligation which is guaranteed by the Constitution against
invasion. The obligation of a contract "is the law which binds the
parties to perform their agreement." It was said further that the
state may modify the remedy, but not so as to impair substantial
rights, and
Page 80 U. S. 654
that whenever this result "is produced, the act is within the
prohibition of the Constitution, and to that extent void." When the
contract here in question was entered into, ample remedies existed.
All were taken away by the proviso in the new constitution. Not a
vestige was left. Every means of enforcement was denied, and this
denial, if valid, involved the annihilation of the contract. But it
is not valid. The proviso which seeks to work this result is, so
far as all preexisting contracts are concerned, itself a nullity.
It is to them as ineffectual as if it had no existence. Upon the
question as thus presented, several eminent state courts have
expressed the same views. [
Footnote 12]
As the case is disclosed in the record, we entertain no doubt of
the original validity of the note, nor of its validity when the
decision before us was made. But as that question was not raised in
this case, we deem it unnecessary to remark further upon the
subject.
Judgment reversed and the case remanded to the Supreme Court
of Georgia with directions to proceed in conformity to this
opinion.
THE CHIEF JUSTICE dissented from this judgment.
[
Footnote 1]
Art. 5, ยง 17, paragraph 7.
[
Footnote 2]
15 Stat. at Large 73; Act of June 25, 1868.
[
Footnote 3]
Act of June 15, 1870, 16 Stat. at Large 363, 364.
[
Footnote 4]
Luther v.
Borden, 7 How. 43,
48 U. S. 47,
48 U. S. 57;
Rose v.
Himely, 4 Cranch 272;
Gelston v.
Hoyt, 3 Wheat. 324; 3 Pet. 634;
Williams v. Suffolk Ins.
Co., 13 Pet. 420.
[
Footnote 5]
Stewart v.
Kahn, 11 Wall. 506.
[
Footnote 6]
Act of June 15, 1836, 5 Stat. at Large 50.
[
Footnote 7]
Act of March 2, 1867, 14
id. 429; Act of March 23,
1867, 15
id. 4.
[
Footnote 8]
Act of June 25, 1868,
ib., 73.
[
Footnote 9]
Act of July 15, 1870, 16
id. 364.
[
Footnote 10]
Luther v.
Borden, 7 How. 57.
[
Footnote 11]
71 U. S. 4
Wall. 552.
[
Footnote 12]
Cooley's Constitutional Limitations 289.